Cowan v Cowan - [2021] NZHC 208

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-13

[2021] NZHC 208

UNDER section 143 of the Land Transfer Act 2017 and r 19.2(i) of the High Court Rules 2016

IN THE MATTER

of a caveat against dealings no. 11972976

BETWEEN

CHRISTINE MARAMA COWAN

First Applicant

TE RAHUI JOHN COWAN
Second Applicant

AND

JOHN ARTHUR COWAN

Respondent

Hearing: 16 February 2021

Appearances:

J Mason and S Roper for first and second applicants C Batt and M Moore for respondent

Judgment:

19 February 2021

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[1] This is an application by the first and second applicants, Christine Cowan and Te Rahui Cowan, for orders sustaining caveats over two properties, a Wellington property with certificate of title WN314/13 and a Carterton property with certificate of title WN472/68. The respondent, John Cowan, the applicants’ father, is the registered owner of both properties. John became the registered owner by survivorship after his late wife, Marama Cowan, the applicants’ mother, died on 19 March 2019. John and Marama had a third child, Elvis Cowan.

COWAN v COWAN [2021] NZHC 208 [19 February 2021]

[2] Christine and Te Rahui make their application pursuant to the process provided for in sub-pt 7 of pt 3 of the Land Transfer Act 2017. They say they have proprietary interests in the two properties sufficient to sustain their caveats. There is a degree of urgency in relation to the disposal of the case, at least insofar as the Wellington property is concerned, because John has entered into an agreement to sell the property to a third party, and the transaction is due to settle on 25 February 2021.

[3] The affidavit evidence filed and served in support of their application by Christine and Te Rahui is minimal, but, insofar as the factual background emerges from that affidavit evidence, and the affidavit evidence filed and served by John in response, it is summarised below.

[4] John and Marama were married for close to 50 years. It is apparent that the marriage had its ups and downs, like most long-term relationships, but, ultimately, John and Marama remained together until Marama’s death.

[5] As I understand the position, the couple acquired the Wellington property, which was the family home, relatively early on in their marriage. In circumstances that are not explained at all in the evidence, they acquired the Carterton property from Te Rahui in 2004. The acquisition of this property appears to have been funded in part from inheritances and in part by raising debt secured over the Wellington property. On the face of the titles, both properties were acquired and held by John and Marama as joint tenants.

[6] In their affidavits, Christine and Te Rahui are critical of their father. Their criticism focusses on his financial contribution to the family. Christine says that in the mid-1990s he retired from his full time job and “tried various activities”. I infer that Christine and Te Rahui believe that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Cowan v Cowan and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] NZHC 208
Decision Date: 19 February 2021

CaseChat Overview and Summary

Christine and Te Rahui Cowan, the applicants, sought to sustain caveats over two properties owned by their father, John Cowan, the respondent. The applicants argued that they had proprietary interests in the properties sufficient to sustain their caveats. The Wellington property was the family home, while the Carterton property was acquired from Te Rahui in 2004. The applicants claimed that John and Marama, the applicants’ mother, had a mutual financial agreement in 2002, which would have transferred the Wellington property to Christine. The applicants also argued that they had made significant contributions to the properties. The court considered the applicants' arguments, including the alleged mutual financial agreement and the applicants' contributions to the properties. The court found that the evidence did not establish an intention to sever the joint tenancy or that the applicants had made contributions sufficient to justify the imposition of constructive trusts. The court rejected the applicants' claims and declined to make an order sustaining the caveats. The court reserved costs, indicating that the respondent was likely entitled to recover costs on a 2B basis.

Orders